Mumbai: A* recalled staring at the diagram of a uterus masking the paint peeling off the grey wall in the waiting room of a private abortion clinic 22 km from Gurugram city in Haryana.
Her eyes rested on the big, bulky chairs in the rundown yet expensive facility where she went when she was 17. Five years on, A remembers the coldness not just of the room but of the caregivers.
The hostility she saw in the eyes of her guardian, a family friend whom her father had asked to accompany her, A felt, was echoed by the nurse who took down her name and the doctor who asked her if she had “many” boyfriends.
Later, A, who was five weeks pregnant and paid Rs 22,000 for the abortion, recalled the doctor telling her guardian, “She seems to be as sexually active as a married woman.”
Abortion is legal for women in India seeking to terminate their pregnancy up to 24 weeks under the Medical Termination of Pregnancy (MTP) Amendment Act, 2021.
But for minors like A, any request for abortion also triggers a police enquiry, irrespective of whether the pregnancy was of a consensual or non-consensual relationship, under the Protection of Children From Sexual Offences (POCSO) Act, 2012.
A three-judge bench of the Supreme Court, comprising justices D Y Chandrachud, AS Bopanna and J B Pardiwala, in a judgement on 29 September, extended the right to abort a pregnancy up to 24 weeks (earlier confined to married women under the MTP Act) to all women and minors.
Reading the MTP Act in harmony with the POCSO Act, the court exempted regional medical practitioners from disclosing the identity of the minor in legal proceedings under the POCSO, noting that it would ease the tension between the legal obligation of reporting a “crime,” and the rights of privacy and autonomy of the minor.
“It could not possibly be the legislature’s intent to deprive minors of safe abortions,” the Supreme Court said.
A Confusing, Legal Labyrinth
The POCSO Act not only dismisses the sexual autonomy and privacy of the individual under 18 but also mandates that the route to getting sexual and reproductive health services is through a punishing criminal justice system.
This is a confusing labyrinth involving paperwork, judicial permissions, and interaction with police authorities, which many families choose to avoid due to the fear of violence and exploitation. Minors and their families are likely to pay more for the promise of confidentiality, making abortion care exploitative and costly. People with limited social and economic resources are forced to rely on unsafe, botched abortion services.
The legal framework, used to criminalise consensual relationships between individuals under 18, has become an instrument of preventing interfaith or inter-caste relationships.
One of the challenges of the Supreme Court’s harmonious reading of the POCSO and MTP Acts is the abundant room for ambiguity and misinterpretation. While the recent ruling objects to the current use of the POCSO Act to criminalise consensual relationships, the question of meaningful implementation still lingers.
Much of how this plays out will still depend on the practitioner's discretion, if they choose to report to the police, and what information they disclose.
Experts say the law still expects the doctor to “draw these fine lines”, which they may not be willing to make due to the fear of violating either the MTP Act orthe POCSO Act and opening themselves up to criminal liability.
"Ultimately, what the law is doing is asking the RMP on the ground to make these determinations," said Aparna Chandra, associate professor of law teaching at the National Law School of India, Bengaluru, specialising in reproductive justice.
"The chances that doctors, who are going to open themselves up to criminal liability if they violate either the MTP Act or the POCSO Act, will draw these fine lines is highly unlikely,” said Chandra, who is also a member of the editorial board of Article 14.
The Data Gaps
There is no separate record of minor abortions in India as most data surveys, including the National Family Health Survey by the ministry of health and family welfare, club minors and women in the 15-49 age bracket and report abortions as a whole.
There is no comprehensive, systemic way to keep track of the numbers because medical abortions have moved outside clinics and are often done by ordering pills online.
According to data sourced from right to information (RTI) applications made to the Brihanmumbai Municipal Corporation (BMC), the number of abortion cases at registered centres in Mumbai fell 95% between 2014 and 2019, with experts noting this could indicate a rise in unsafe and illegal abortions.
“This mandatory reporting requirement has created a huge constraint on minor's ability to access abortion services,” said Chandra. “When you go to a doctor, and the doctor says they can't do the abortion without informing the police, there are chances that most people disappear and resort to shady practitioners.”
“[The judgment] is a legal nicety which I don't know will translate on the ground. And ultimately, we have to see what is on-the-ground impact,” Chandra said.
As families run from pillar to post trying to gather additional documentation and consent requirements to comply with the law, the child's pregnancy could probably cross the 24 weeks of termination as mandated by law, said Kushi Kushalappa, a social worker with Enfold Trust, a Bengaluru-based NGO working on child rights.
“The family is then in a tricky situation. The effect and impact are huge,” Kushalappa said. “Parents of 13, 14, 15, 16 year-olds are not at all ready to understand that their children engage in sex, much less get pregnant, so they are willing to spend money to 'sort out the problem.’”
The families and minors go through “trauma” through the process, but “there is no time or no bandwidth to look into their trauma or the child's”, said Kushalappa. “It just becomes a mechanical process.”
Before and after the procedure, A faced many taunts at home. Over time, the insults from her father, like ‘tum nanga naach karke aayee ho’ (you have done a naked dance and come), morphed into silence; abortion, sex, or sexual autonomy were never brought up again.
'The Cops Landed Up At His Door’
In May 2021, B was 16 when she had sex with a senior in her school in Bangalore, who was a little over 18 years, said Kushalappa, the social worker.
Her mother and sister took her to a government hospital for a check-up and ultrasound. When they found out she was pregnant for more than 20 weeks and they would have to approach the Karnataka High Court for legal permission to undertake the abortion as per the MTP Act (it was changed to 24 weeks through the 2020 Amendment), they decided to raise the baby by themselves.
Still, the medical practitioners had already alerted the police who registered a first information report (FIR), booking her male partner for “penetrative sexual assault” under Section 3 of the POCSO Act.
B was harangued for her partner’s name; if she didn’t tell them, the police told her they would have to investigate and speak with everyone in her circle—a breach of her privacy.
Once she did, the police arrested the boy, who spent two months in judicial custody.
“The cops land up at his door, tell him ‘you had sex in December, the girl is pregnant and going to have a baby in a couple of months,’” Kushalappa said. "Can you imagine what happens in that family? They fell apart."
The male partner was convicted of rape by the sessions court but he was acquitted on appeal to the Karnataka High Court where he argued it was a consensual relationship. After he was released, their parents married them.
“I Only Remember A Lot Of Crying’
Five years on, C*, pregnant at age 17, struggled to remember most things about the day she got her abortion and everything that followed because of how traumatising and intimidating it was.
“I only remember a lot of crying,” she said. “I got on birth control immediately after everything was over.”
C took one tablet (mifepristone) prescribed by a doctor at an abortion clinic in Mumbai and the second set of pills (misoprostol)—four pills orally and four vaginally—the next day, after which she remembers patches of bleeding.
It took a day and a half for the embryo to pass.
Her sister, 27 at the time, was working as a gynaecologist in the United Kingdom, had acted as her legal guardian, taking her to a private abortion clinic in Mumbai, and paid close to Rs 50,000 for a private, undisclosed sonography, wherein after the procedure they deleted all her records in front of them to protect privacy, apart from the cost of an abortion.
“She and I both knew that abortion the legal way was not an option. We didn’t even talk about informing the police,” said C. “From the moment I told her, she was figuring out a way to go about this in a hush-hush manner.”
“I wasn’t equipped to do any of it alone. If I didn't have my sister, I would have been forced to look for unqualified doctors at the risk of personal safety,” she said.
‘They Take Down Your Dignity As Well’
The first two times D* wanted an abortion, she visited the local dai who lived some 500 meters from her chawl (tenement) in north Delhi.
D’s mother is a daily wage labourer, supporting a family of six people. Her stepfather’s physical disabilities keep him at home.
In 2017, when she was 17, the dai gave her a set of pills. D knew it was dangerous but preferred the dai to face judgmental doctors at a government hospital.
"Mere bas kapde nahi utare the, but nazron se voh bhi utaar dete hain,” she said. (They didn't just take off my clothes, they take down your dignity as well.)
Both times D paid less than Rs 200 to the dai for the pills. To date, she doesn’t know what they were. Her Muslim family had disowned her because she was in an interfaith relationship with a Hindu who was a few months older than her.
In slums and small cities, access to abortion is determined by the physical access to healthcare infrastructure, finding a practitioner who is non-judgmental, and finding someone who won't exploit the person in need of care because they know there is a disparity in the power equation.
“Abortion is a privilege because in most cases it all comes down to money for accessing basic healthcare,” said Sonal Kapoor, co-founder of Protsahan India Foundation, a Delhi-based NGO that supports and empowers adolescent girls vulnerable to abuse and marginalisation in urban slums.
The laws that dictate abortion access for minors in India—the MTP Act and POCSO Act—impact the poor and the underprivileged the most, said child rights activist Bharti Ali who works with HAQ: Center for Child Rights.
“If I have the money, I can go to a private facility for an MTP and also ensure that it does not get reported. But if I don't have those resources, then the law will take its course, and some will bear the brunt of it more than others,” said Ali. “We need to look at laws in the context of who are these people who are ultimately going to pay the price of the law.”
‘A Weaponised Mechanism’
G* and H* were in a consensual relationship—G was a 14-year-old Muslim woman and H was Hindu, just a few weeks short of turning 18.
When G got pregnant, her family coerced her into saying that she was raped.
Both families were from economically poor backgrounds. G’s father worked as a gardener and her mother as a cleaner at a hospital. H’s father was a daily wage labourer.
Her testimony led to the court sentencing H to life imprisonment for raping a minor girl under the POCSO Act.
A 2017 study by HAQ: Center for Child Rights and the Forum Against Sexual Exploitation of Children found that 25% of POCSO cases applied to “romantic relationships.”
One of the judicial officers in Delhi interviewed for the report said: “...There are many cases of elopement, which are falsely framed under the POCSO Act. The elopement cases mainly consist of children in the age bracket of 15-18 years. In such cases, the victim and the accused don’t want to frame each other, but the families force them to do so.”
Minors are reluctant to reveal the name of the person they had sex with; either they are vague, or they name someone else to protect the partner, the report said, noting that “false cases could be 1 or 2 out of 10, but cases of consensual sex could be 5 out of 10.”
Mandatory reporting to the police was meant to aid victims and survivors of sexual abuse. In instances of abuse within the family, the reporting clause is beneficial for it mandates the doctor to inform the police when the minor may not be equipped to.
But the reality is POSCO has become a “tool” to “abuse the process of law” and criminalise romantic relationships, the Madras High Court said in January 2021.”
"POCSO, though largely robust in its framework, has also been used sometimes as a weaponised mechanism to put young boys behind bars by girls’ families for consensual relationships,” said Kapoor from Protsahan, “because a young woman’s body and sexuality is to be somehow 'saved' by the patriarchy."
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(Saumya Kalia is an independent journalist writing about health, gender, and human rights.)